Transcript 90th General Assembly

• Notable Acts of the
90th General Assembly
Cory Cox
Act 139and Act 1014 The Telemedicine Abortion
Bills:
• SB 53 Irvin and HB 1076, respectively.
• Requires that when mifepristone or another drug or chemical regimen is
used to induce an abortion, the initial administration of the drug shall
occur in the physical presence of the prescribing physician.
• The physician shall make all reasonable efforts to ensure that the patient
returns 12-18 days after administration of the drug so that the physician
can confirm that the pregnancy has been terminated and assess the
patient’s medical condition. The efforts made to comply with the Act shall
be noted in the patient’s medical record. The Act bars abortion by
telemedicine due to the requirement that the physician be physically
present for administration of the abortion-inducing drug.
Act 577 (HB 1394 C. Fite) The FDA Protocol Bill:
• Requires physicians to administer RU-486 (mifepristone and
Misoprostol, the “Mifeprex regimen”) in accordance with FDA
protocol.
• Current FDA protocol as outlined in the final printed labeling
of mifepristone consists of three 200mg tablets of
mifepristone followed by two 200mg tablets of misoprostol,
through 49 days’ gestation.
• Prior to administering the drug regimen, a physician must
meet with the patient and document gestational age and
intrauterine location of the pregnancy.
Act 934 (HB 1424 Harris) Parental Notification Bill:
• Requires parental consent for abortions performed on a pregnant minor, or alternatively, provides a
judicial bypass procedure for the pregnant minor to obtain an abortion without parental consent.
• The prior parental consent chapter is repealed and replaced. A physician shall not perform an
abortion upon an emancipated minor without first obtaining the written consent of the pregnant
minor (if she is competent) and one parent or legal guardian.
• The physician must also obtain proof of identification from the parent/guardian in the form of a
government-issued photo identification card, and written documentation that establishes that the
person is the lawful parent or guardian of the pregnant minor.
• Consent is not required in the case of a medical emergency where there is not sufficient time to
obtain consent – it must be documented in the patient’s medical record. In the case of an
emergency abortion, the physician must notify the parent/guardian within 24 hours after the
abortion is performed, unless the pregnant minor gives notice of intent to obtain a judicial waiver.
Where a judicial bypass is sought, the court shall expeditiously schedule a confidential conference
with the pregnant minor and the physician. The pregnant woman is entitled to appointed counsel.
Act 996 (SB 569 Stubblefield) Public Funding of
Abortion
• Bars public funds from going directly or indirectly to abortion
providers. This is already prohibited by Amendment 68 to the
Arkansas Constitution, as acknowledged in the Act.
• The Act prohibits the state from awarding a grant to pay the direct or
indirect costs of performing, inducing, referring, or counseling in
favor of elective abortions and further prohibits the award of any
grant to any entity or affiliate of any entity that performs abortions,
provides abortion referrals, or counsels in favor of elective abortions.
Act 137 (SB 202 Hester): The Intrastate Commerce
Improvement Act.
• Act 137 prohibits any county, municipality, or other political subdivision of the
State from adopting or enforcing any ordinance, resolution, rule, or policy “that
creates a protected classification or prohibits discrimination on a basis not
contained in state law.” (To be codified as Ark. Code Ann. § 14-1-403(a)).
• The prohibition does not apply to any rule or policy regarding employees of a
county, municipality, or political subdivision. (To be codified as Ark. Code Ann. §
14-1-403(b)).
• The purpose of the Act “is to improve intrastate commerce by ensuring that
businesses, organizations, and employers doing business in the state are subject to
uniform nondiscrimination laws. . .” (To be codified as Ark. Code Ann. § 14-1402(a)).
Act 975 (SB 975 [yes they are the same number]
by J. Hutchinson) RFRA:
• Act 975 was a reaction to Governor Hutchinson refusing to sign HB 1228 which had made its way to his desk.
Differences in the two bills
• SB/ Act 975
• HB 1228
• - Claims only against
governmental bodies.
• Must have normal
standing to claim.
• Relies on federal case law
in defining standing, etc.
• Claim against anyone
• Allowed prospective relief
• Was much more defined
and did not rely on existing
case law
Act 975 mirrors the familiar
• Act 975 is substantively identical to the federal RFRA law and RFRA
laws in about 20 states. Under the RFRA laws, any person whose
exercise of religion is substantially burdened by the government may
assert the RFRA protection as a claim or defense against the
government in court.
• Uses a strict scrutiny standard.
Rosalyn Middleton
NOTABLE EDUCATION LEGISLATION
FROM THE 90TH GENERAL ASSEMBLY
FUNDING OF PUBLIC EDUCATION
(LAKE VIEW)
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Act 1248 School Funding
(HB1663)
According to Lake View, the State has an
“absolute duty to provide the [public] school
children of Arkansas with an adequate education.”
Establishes the minimum per pupil dollar amount
necessary to provide an adequate education.
2015-2016 School Year = $6,584 (Foundation
Funding)
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Act 377 Waiver from
Administrative Consolidation
(HB1263)
Establishes a waiver from administrative
consolidation for school districts with an
ADM of less than 350 students if the school
district can show that, despite the school
district’s low enrollment, the school district is
providing its students with an adequate
education.
Act 1178
Succeed Scholarship
(HB1552)
Establishes a scholarship fund separate from the Public
School Fund for students with disabilities.
Scholarship will allow the student to attend a private
facility, if :
o The student is currently enrolled in a public
school.
o Must be enrolled for at least a year.
o Public school setting not an appropriate
environment for the student.
Scholarship = Foundation Funding Amount
NOTABLE EDUCATION LEGISLATION
FROM THE 90TH GENERAL ASSEMBLY
DESEGREGATION
Act 240 Waivers for Public School Districts
(HB1377)
 Allows a public school district that
is losing students to an openenrollment charter school to
petition the state board of
education for all or some of the
same waivers granted to the
charter school.
Act 372
Creating a New School District by Detachment from an Existing
District
(HB1242)
 Reduce the minimum area and pupil requirements for
creating a new school district from an existing school
district.
 Applies only to school districts with an ADM of 5,000 to
20,000 students or encompassing a total area of 450
square miles.
 Cannot reduce the existing district to less than 2,500
students.
 New school district must have a minimum of 2,500
students.
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Act 560 School Choice
(SB179)
Eliminates the voluntary exemption
for school districts.
Requires school districts seeking an
exemption to submit proof that the
school district is subject to an
“active” desegregation order or
plan.
Nga Mahfouz
ACT 102: AN ACT TO AMEND ARKANSAS LAW
CONCERNING THE POLITICAL FREEDOM OF PUBLIC
EMPLOYEES
Act 102 makes it unlawful for any public employers to:
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(1) discipline, (2) threaten to discipline, (3) reprimand
orally or in writing, (4) place any discipline/reprimand notation
in personnel, or (5) otherwise discriminate against
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public employees because they
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communicated with an elected official or
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exercised a right or privilege under the Arkansas Freedom
of Information Act
The term “public employee” is broadly defined to include any
person providing services for the State of Arkansas, a county, a
municipal corporation, or any other political subdivision of this
state for which compensation is paid.
ACT 220: AN ACT TO REQUIRE THE ARKANSAS STATE
CLAIMS COMMISSION TO PROVIDE SPECIFIC
FINDINGS OF FACT AND CONCLUSIONS OF LAW TO
SUPPORT A FINAL ADJUDICATION FOR A CLAIM
CONSIDERED BY THE COMMISSION
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When dismissing a claim or issuing a final adjudication of
a claim on the merits, the Commission must provide specific
findings of fact and conclusions of law to support its decision.
•
The Commission may not merely cite to a party’s
arguments or motion, unless its decision is also supported by a
specific explanation as to why the argument or motion is
determinative to its decision.
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If the Commission’s decision is based on an evidentiary or
civil procedure rule, statute, or case law, it must cite said rule,
statute or case law.
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An appeal to the General Assembly will not be accepted,
unless it complies with the above requirements.
o
Non-compliant appeals will be sent back to the
Commission for reconsideration until the above requirements
are met.
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Requirements do not apply to claims filed by ADC
inmates.
ACT 1101: AN ACT TO ESTABLISH A BILL OF RIGHTS FOR A PROPERTY OWNER
Property owners who are subject to eminent domain condemnation proceedings have the following bill of rights:
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Receipt of just compensation when private property is taken for a public use.
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Private property may only be taken for public use.
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Private property may only be taken by a governmental entity or a private entity authorized by law to exercise the
power of eminent domain.
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Receipt of reasonable notification of an entity’s interest in taking the property owner's private property.
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Receipt from the government or private entity an assessment of the just compensation the entity estimates for
the property owner's private property before or contemporaneously with a good faith offer of just compensation.
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When the owner cannot be located and is served by warning order, filing the assessment with the complaint for
condemnation will be sufficient compliance with this requirement.
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Receipt of good faith purchase offer from entity before condemnation proceeding commences.
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Right to hire an appraiser/other independent professional to determine the value of the property or to assist the
owner in a condemnation proceeding.
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Right to hire an attorney to represent the property owner in a condemnation proceeding and negotiate on behalf
of the property owner with the entity.
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In an eminent domain condemnation proceeding, the circuit court must impanel a 12-member jury to determine
the just compensation owed to the property owner.
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Right to appeal a decision entered by the circuit court.
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In a condemnation brought under state law, owner shall be
entitled to an award of his/her costs, expenses, and reasonable
attorney's fees incurred in preparing and conducting the final
hearing and adjudication, including the cost of appraisals and
expert fees, if the compensation ultimately awarded exceeds the
condemning entity's initial assessment of the just compensation
owed by twenty percent (20%) or more.
o
Award of costs, expenses, and fees in condemnation
brought by city or county is governed by laws that authorize the
condemnation action.
With respect to condemnation proceedings initiated by the State
Highway and Transportation Department, if the compensation
finally awarded exceeds the amount of money deposited by 20%
or more, the court shall enter judgment against the State of
Arkansas and in favor of the party entitled thereto for the
amount of the deficiency and shall award the party entitled to
judgment its costs, expenses, and reasonable attorney’s fees
incurred in preparing and conducting the final hearing and
adjudication, including without limitation the cost of appraisals
and fees for experts.
ACT 1103: AN ACT TO AMEND ARKANSAS LAW CONCERNING THE PREVENTION
AND DETECTIION OF FRAUD AND OTHER IMPROPER ACTIVITIES WITHIN STATE
GOVERNMENT
No Retaliation For Reporting Loss Of Public Funds
Under the Whistleblower’s Act, a public employer may not take adverse action against an
employee who reported a loss of public funds under ACA 25-1-124, which requires public
employees having supervisory fiduciary responsibility over all fiscal matters to report a loss of
public funds to Legislative Audit, including:
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Apparent unauthorized disbursements of public funds.
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Apparent theft or misappropriation of public funds or property.
Such mandatory reports shall be made within 5 business days after employee learns of the loss.
An employee with supervisory fiduciary responsibility over all fiscal matters who purposely
fails to comply with this reporting obligation is guilty of a Class A misdemeanor.
Protecting Confidentiality of Documents Under The Whistleblower Act
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All materials, documentation (including drafts of investigative reports), and other data
gathered in connection with a communication regarding the existence of waste or a violation are
privileged, confidential, and exempt from FOIA.
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However, final reports issued by the employer or appropriate authority concerning a
communication regarding the existence of waste or of a violation and any supporting
documentation shall be open to public inspection and copying, unless they are exempt from
disclosure under other laws.
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Applies to communications regarding waste or a violation received by a telephone hotline
allowing for the reporting of fraud, waste, or government abuse.
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This section does not apply to the name and identifying information of a state employee eligible to
receive a reward under the Whistleblower’s Act.
Notice-Posting Requirement
Public employers must conspicuously post a printed sign at least 8.5” x 11” which:
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Informs employees of the provisions of the Whistleblower’s Act;
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Identifies the appropriate authority to whom employees may communicate in good faith regarding the
existence of waste or violation; and
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Provides the number of telephone hotline for reporting of fraud, waste, or government abuse, if such
hotline exists.
Legislative Audit is required to prepare the sign and make it available on its website in a format which
allows it to be printed by public employers.
Communications Made In Normal Course Of Duty Are Not Eligible For Rewards Under The Whistleblower
Act
Communications will be deemed to be in the normal of course of duty if the employee:
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Handles or exerts control over the employer’s funds;
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Participates in making decisions or recommendations concerning the deposit, investment, expenditure
of the employer’s funds; or
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Is responsible for auditing the employer’s funds.
Shawn Johnson
Act 411 – Substance Abuse Reporting Act
Requires health licensed entities to report within 7 days to the
professional licensing entity and law enforcement any employee
disciplinary actions or voluntary resignations during pending
disciplinary actions as a result of drug abuse. If the professional
licensing entity determines that criminal activity may have been
committed, then the licensing entity must report it to the Drug
Enforcement Administration.
*Effective July 22, 2015
Act 887 – Telemedicine
Authorizes the use of telemedicine (i.e., real time, two-way
audio-visual communication) so long as the health care
professional is licensed in Arkansas and so long as the medical
provider has a pre-existing personal or professional relationship
with the patient or the patient was referred to the medical
professional by another medical professional who has a preexisting professional relationship with the patient. Requires
health insurers to reimburse telemedicine providers at the same
rates as in-person medical providers.
*Emergency Clause – Currently in effect
Act 374 – Right to Try Act
Allows licensed physicians to prescribe to eligible patients investigational drugs that have been partially
approved by FDA (through Phase I [which only examines toxicity and dosing, not safety or efficacy of
drug]) yet remain in clinical trial. Eligible patients are those who: (1) have a terminal illness; (2) have
been determined by a qualified physician to have no other FDA approved medical options; (3) have been
unable to participate in a clinical trial within 100 miles of patient’s home or not accepted within one
week of application; (4) have been prescribed for the drug; (5) have given their informed consent. Grants
tort immunity to manufacturers and doctors so long as they comply with this Act in good faith. If the
patient dies during treatment with the investigational drug, then the heirs are not liable for debt to the
manufacturer. State actors may not take adverse licensing actions against medical professionals for
prescribing investigational drugs. (NOTE: original version of the bill (which did NOT pass) made it a
Class A misdemeanor for the State and its agents to interfere with access to investigational drugs).
* Effective July 22, 2015
Act 1114 – The Joshua Ashley-Pauley Act
Grants immunity from arrest, charge or prosecution for anyone
who, while illegally possessing a controlled substance, seeks
medical assistance in good faith for himself or herself for or
another. A person’s probation or status respecting a protective
order or TRO shall not be affected so long as the individual was
seeking medical assistance in good faith. Note: it is unclear
whether this immunity extends to all involved individuals or
only the caller, but there is an arguable interpretation that it
protects all involved individuals.
* Effective July 22, 2015
Act 1222 – Naloxone Access Act
Authorizes EMT’s, first responders, law enforcement, and
medical professionals, to administer naloxone to anyone whom
they “reasonably believe” to be experiencing an opioid
overdose. Naloxone is a scientifically proven opioid antagonist
(or painkiller antidote). Grants immunity to anyone who
prescribes or administers naloxone.
* Effective July 22, 2015
Act 1063 – Recording of Public Events
Prohibits a public officer or employee from prohibiting a person from using a recording device
unless the act of recording presents a risk to public safety of those present, is located inside a
drinking water treatment facility, constitutes an element of a criminal offense, could infringe on
copyrighted material, circumvents the requirements for pay-to-use material, or unreasonably
obstructs another person’s lawful presence or movement. Deletion or seizure of recorded
material is prohibited unless it constitutes contraband or appears to be involved in commission
of a crime. A violation of this section waives the state’s sovereign immunity, but individual
capacity claims are prohibited, and punitive damages are not allowed. The statute expressly
states that the Health Insurance Portability and Accountability Act’s (HIPAA) privacy
protections supersede the Act with respect to medical facilities.
* Effective July 22, 2015
Act 1078 – Firearms on School Property
Extends existing exemptions for concealed carry licensees to the
publicly owned and maintained parking lots of K-12 schools,
public buildings (including State Capitol), buildings owned by
the Arkansas Highway and Transportation Department, and
higher education institutions. (Note: if unattended, the car
containing the firearm must be locked in order for the
exemption to apply.)
* Effective July 22, 2015